Not a Free Press Court?

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations, perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues

Government Sponsored Social Media and Public Forum Doctrine under the First Amendment: Perils and Pitfalls

Between the extremes of no interactivity and complete interactivity, it is difficult to predict whether courts will label a government sponsored social media site a public forum or not. But it is precisely in between where government actors are likely to wish to engage citizens and where citizens are most likely to benefit from government social media initiatives. The goal of this article, therefore, is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court\u27s public forum jurisprudence in order to advise government actors wishing to establish social media forums

#I U: Considering the Context of Online Threats

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker\u27s innocent words to be misunderstood People speak differently on different social media platforms, and architecturalf eatures ofplatforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This Article therefore advocates creation of a procedural mechanism for raising a context defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having their opinions misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This Article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pretrial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment

Privacy and the New Press

In The First Amendment Bubble, Professor Amy Gajda comprehensively examines privacy threats posed by digital media and “quasi-journalists” and demonstrates how their intrusive practices threaten existing press freedoms

Defensor Fidei: The Travails of a Post-Realist Formalism

This Article probes the philosophical and psychological attractions of formalism and suggests that its promise of stability and order may be essential to the effective functioning of the legal system, even if the promise can never be realized

Silencing John Doe: Defamation and Discourse in Cyberspace

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits pose to Internet discourse. Although the constitutional privilege for opinion holds promise as a solution to this problem, the Supreme Court’s jurisprudence provides little assurance that the privilege can protect the “robust, uninhibited, and wide-open nature” of Internet discourse without giving Internet speakers free license to harm the reputation of others. Therefore, this Article attempts to articulate a theory that justifies protecting John Doe and suggests the steps courts should take to adapt the existing opinion privilege to the unique context of cyberspace

Incendiary Speech and Social Media

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the mismatch between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create

Untangling Defamation Law: Guideposts for Reform

This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today’s defamation law remains so complex, tracks reforms over the last half century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law’s most prominent would-be reformers and finds them to rest on an incomplete understanding of how defamation law’s complex pieces contribute to the whole. Finally, after identifying some important barriers to defamation law reform, the article provides guideposts for the reform process

Symposium: Truth, Trust and the First Amendment in the Digital Age: Foreword: Whither the Fourth Estate?

As a professor of Media Law, I have devoted my career over the past quarter of a century to the idea that the press plays a special role in our democracy. That role is largely encapsulated by the concept of the press as Fourth Estate – an unofficial branch of government in our scheme of separation of powers that checks the power of the three official branches. In our constitutional scheme, the press is the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discus-sion and rational public policy. In this Symposium issue, Professors West and Andersen Jones analyze new ways in which President Trump’s behavior threatens the ability of the press to check the power of the executive branch and provide information vital to democracy